Lord Anderson of Ipswich: My Lords, I will speak to Amendment 68 on the supplementary sheet in my name and that of the noble Lord, Lord Carlile. The immunity that preceded this Clause 30 may have been doomed from the moment the noble Baroness, Lady Manningham-Buller, began her speech in Committee by saying that
“it seems to me that it is wrong in principle for members of the security and intelligence services to have immunity from the law”.—[Official Report, 11/1/23; col. 1452.]
She was right. That was just one reminder of how fortunate we are in the calibre and integrity of our intelligence chiefs, including those who have found their way into your Lordships’ House.
We now have a further statutory defence which would bite on encouragement or assistance of foreign crimes, which, although unreasonable and thus outside the scope of the existing Section 50 defence, is none the less considered necessary for the proper exercise of a function of an intelligence service or the armed services. A defence is, as has been said, in any view more acceptable than an immunity. But the likely marginal gain of this one seems limited, and its purpose is obscured.
So I ask the Minister in this new context to deal with the issue which, as we have just heard, the ISC did not look at. Why is this defence so broad in its application to the Armed Forces? The Minister indicated in Committee that the immunity was
“confined very much to the intelligence support by the Armed Forces”.—[
We all know that the Armed Forces sometimes deploy in support of intelligence work overseas by the agencies. We also know that the Intelligence Corps has its own abilities for the gathering and analysis of intelligence. That is captured by my amendment, though perhaps not by that of the noble Lord, Lord Beith.
What justification is there for extending this new defence to activities of the Armed Forces that are not intelligence related? Exceptions to the rule of law should be tightly controlled. Why should service personnel  be exempt from the same law that applies to the rest of us outside the special circumstances of intelligence? From the debate in Committee, I understood those were the only circumstances thought relevant. I hope the Minster will be able either to explain this or to accept my amendment to his amendment. In the light of what we have just heard from the noble Lord, Lord West, the Minister also has a great deal of explaining to do in relation to the important points that he raised.
I would like to make two comments on Amendment 67, in the name of the noble Lord, Lord West. I have two reservations about it. Necessary and proportionate is the test, and I would have thought that conduct that is necessary and proportionate is also reasonable, and therefore would benefit in any event from the Section 50 defence. I just wonder how much this really adds.
Secondly—I defer to more experienced criminal lawyers than me, of whom there are at least two in the House—the concept of proportionality could be quite a complicated one to explain to a jury. I am not sure I can think of any other criminal offence in which that concept exists. Proportionality in law, as I recall, is a four-part test, explained by the Supreme Court in the Bank Mellat case. That might rather complicate the route to a verdict. However, those are technical points.
The objections raised by the noble Lord, Lord West, are very serious. It is in the interests of the agencies to co-operate to the very fullest extent with the ISC. It is in the interests of all the rest of us, and I am quite sure it is in the interest of the Home Office as well. It is very distressing to hear that that did not happen in this case. So, in view of the serious points that the noble Lord made, and despite my rather lukewarm feelings about his amendment, I shall listen very carefully to what the Minister has to say in response. I sense that perhaps this is a discussion that will need to continue.